Note: Decisions of a three-justice panel
are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2001-400

FEBRUARY TERM, 2002

In re Appeal of Gregory and Sharon Parke

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APPEALED FROM:

Environmental
Court

DOCKET NO. 55-4-01 Vtec

Trial Judge: Merideth Wright

In the above-entitled cause, the Clerk will enter:

Appellants challenge the environmental court's determination that the City of
Rutland zoning regulations do not require a building permit to erect a fence. We
affirm.

In the fall of 2000, appellees began replacing an existing five-foot-high
fence that separated their property from appellants' property with an
eight-foot-high fence. When appellants objected to the fence, appellees sought a
determination from the City of Rutland zoning administrator as to whether they
needed a permit for the fence and whether the fence was subject to setback
provisions contained in the zoning regulations. The zoning administrator
concluded that the regulations do not require permits for fences or walls, and
that the setback requirements apply to buildings and not fences. On appeal, the
zoning board of adjustment upheld the administrator's decision, stating that (1)
the zoning regulations do not regulate fences; (2) even if the regulation of
fences could be implied, the regulations contain no guidelines under which a
permit could be issued; and (3) regulating fences as buildings subject to
setback requirements would effectively ban fences in the vast majority of city
lots. On further appeal, the environmental court granted appellees' motion for
summary judgment, concluding that the zoning ordinance does not require a permit
to erect a fence.

On appeal, appellants reason as follows. Section 5717 of the City of Rutland
zoning ordinance regulates accessory uses and accessory buildings. Use of an
accessory building is defined in § 5702 of the ordinance as a use of land or
"structure" or building customarily incident to the principal use of the land or
building to which it is accessory. Under 24 V.S.A. § 4303 (11), the word
"Structure" is defined as "an assembly of materials for occupancy or use,
including, but not limited to, a building, mobile home or trailer, billboard,
sign, wall or fence, except a
wall or fence on an operating farm." (Emphasis added.) Appellants acknowledge
that municipalities are not required to adopt the definitions contained in §
4303, see 24 V.S.A. § 4406 (setting forth requirements that must be adopted as
part of municipal zoning regulations), but they contend that the City of Rutland
did so in § 5701 of its zoning ordinance by stating that the purposes of the
ordinance are to promote health and safety and to protect and conserve property
values as "in accordance with the Municipal Zoning Enabling Law, 24 V.S.A. §
3001 et seq."

These arguments do not withstand scrutiny. Section 5701 appears to do nothing
more than state that the purposes
of the zoning regulations are in accordance with state zoning law. Even if we
were to construe the language quoted above as incorporating into the zoning
regulations the provisions of state law, including the definitions contained in
§ 4303, those sections of state law referred to in the ordinance were repealed
effective March 23, 1968. See 1967, No. 334 (Adj. Sess.), § 2. Under repealed §
3001 of Title 24, the word "Structure" is not defined to include fences, but
rather to mean "an edifice whether or not constructed on permanent foundation
and includes any and all outdoor advertising devices or displays." See Webster's
New World Dictionary 431 (3d ed. 1988) ("edifice" is "a building, esp. a large,
imposing one"). We reject appellants' claim that the ordinance's single
reference to a repealed statute incorporates a successor statute containing
substantively different language on the salient point.

Turning to § 5717 of the zoning ordinance, that provision addresses setback
requirements for accessory buildings in subsection (a), identifies garages and
storage spaces as accessory uses in subsection (b), limits the use of garage
buildings in subsection (c), and restricts the dimensions of accessory buildings
in subsection (d). Under the commonly understood meanings of the terms contained
therein, none of these subsections apply to fences. Further, as the zoning board
noted, construing subsection (a) to include fences would effectively ban fences
on a vast majority of city lots. It may be an aberration for a zoning ordinance
to exclude regulation of fences within the municipality, but the City of
Rutland's ordinance plainly does so.